Posted in Legislative Research on Feb 25, 2019

There is a widespread public attention in the movement of ruling National League for Democracy (NLD) party to draft amendments of the 2008 constitution during these days. Everyone is saying that they want to amend the constitution up to a degree. Nobody dares to say they do not want to amend it, even the most powerful institution in the country, the Tatmadaw. At the same time, everybody knows there are various ideas and challenges ahead related to Constitutional amendments under the current political situation. NLD government have tried it unsuccessfully in its 3 years tenure through the Peace process (i.e. 21st Panglong Conference and Nationwide Ceasefire Agreement (NCA)), but now they changed their course abruptly to amend it through the parliamentary way.

U Aung Kyi Nyunt, one of the representatives of Amyotha Hluttaw (Upper House of the Parliament) from NLD party, took the country by surprise when he submitted an emergency motion to form the joint committee in the Pyidaungsu Hluttaw (bicameral parliament) to amend the Union charter. From then on, the amendment buzz was touching everyone inside and outside of the Parliament. A few days after the emergency motion of NLD party for forming a joint committee is rectified, Union Solidarity and Development Party (USDP), a major opposition party, said it also wanted to submit a proposal to amend the constitution and it actually did it after a few days. What they want to change is the Article 261 related to election of regional chief ministers by the Parliaments of the respective States and Regions rather than by the appointment of the President.

According to the USDP proposal, the parliaments of States/Regions will be able to elect their chief ministers, and the bill covering only the appointment issue, other qualifications or rights are not included. However, there are still many constitutional restrictions and chief ministers are still constrained politically by other provisions of the constitution. For example, all chief ministers still have to report to the President, and ministers of States and Regions still have to answer to the President via the chief ministers. The obvious problem is the lack of financial independence of regional governments. If you look at the budget data, you can clearly see all states and regions except Yangon Region have to depend too much on the Central government’s financial assistant. Only Yangon Region (with its lots of revenue from YCDC Taxes) can still enjoy the financial independence. The second largest Region in the country, Mandalay Region, still has to receive half of its expenditures for 2017-18 fiscal year. Therefore, it clearly points out only changing the Article 261 which USDP party wants to amend, is not enough for the States/Regions to achieve more autonomy and freedom. And for the long term, if we can change and give more autonomy to the States/Regions and decentralization of the Central government, it will be more beneficial for the foundation of federal democracy system and peace in the country.

In an attempt to respond the NLD’s “Joint Committee to draft amendments to the constitution”, USDP party, which does not have the 20 percent of MPs in the parliament, has made a proposal and it has been supported by Military representatives. If NLD party also supports the bill proposal, the amendment of Article 261 will definitely pass the parliament and will be successful. However, there will not be any material impact on the autonomy of regional governments or will not be any closer to the federal system. What they should amend instead is to modify the power balance between the powers of the Pyidaungsu Hluttaw and those of regional chief ministers and expand the power of legislative branches of States and Regions by expanding the Schedule Two (which details powers of State and Regional parliaments). Moreover, to give financial independence to the States and Regions, modifying of Schedule Five (which deals with taxes and revenue collected by states and regions) should include in their proposal. In the first Session of Hluttaw, Tatmadaw also supported the amendments of Schedule Five and Schedule Two, so it would be easily successful, if they tried this time. When everybody says they want to change the charter, exploiting the situation is the duty of all MPs in the Pyidaungsu Hluttaw.

If there is no collaboration between one party and another, or one political group and another, the chance to successfully amend the constitution will still be far away. Although it seems the USDP proposed bill gives more power to the States/Regions since they can elect their own Chief Ministers rather than appointment by President. However, the hegemony of Central Government will continue over the regional governments via the financial ways. So even if the hastily submitted and uncompleted proposal by USDP is rectified by the Pyidaungsu Hluttaw, the Second Session still need to amend Schedule Two and Five from the multiparty joint committee for drafting the amendments of constitution to give more power and authority to the regional governments.

Written by Hla Myo Kyaw.